Opinion
16-P-716
03-13-2017
Karen M. CAPPELLO v. James A. HAMERSKI.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Karen M. Cappello (the mother) appeals from a judgment of the Probate and Family Court denying the retroactive application of a child support award modification from the date of service of the complaint for modification on James A. Hamerski (the father) and denying an award of attorney's fees. We affirm.
Background . The father filed for divorce in 2008. The father was ordered to pay $300 per week in child support to the mother. In September, 2012, the mother filed a complaint for modification of the child support order, alleging that the father's income had substantially increased. The complaint was served on the father on January 14, 2013. Over the next two years, both parties filed subsequent actions for modification and attorney's fees. All of these actions, starting with the September, 2012, complaint, were consolidated into a single trial.
In May, 2013, a temporary support order was entered increasing the child support to $560 per week. A trial was held in July, 2014, and concluded on August 1, 2014. The trial judge entered judgment on November 25, 2014, increasing the child support order to $805 per week, retroactive to August 1, 2014, the date proposed findings of fact were due after the conclusion of the trial.
Discussion . 1. Retroactivity of the order . The mother argues that the failure to make the child support order retroactive to January 14, 2013, the date the father was served with the complaint and summons, was an abuse of discretion because (a) the judge failed to make findings of fact that full retroactivity would be contrary to the children's best interests, or unjust to the parties, or inappropriate, because the judge only looked at the best interests of the oldest child; and (b) the support order must be made fully retroactive to avoid rewarding the father for deceptively reporting his income in his financial statements, and the judge should not have relied on those financial statements.
Under G. L. c. 119A, § 13(a ), as amended by St. 1998, c. 64, § 161, any modification to a support order cannot be made retroactive beyond "the date that notice of such complaint has been given, either directly or through the appropriate agent, to the obligee."
a. Findings of fact . "[T]here is no statutory mandate that modification of support orders be given retroactive effect," and "the decision whether to give retroactive effect to such orders rests in the sound discretion of the judge." Boulter-Hedley v. Boulter , 429 Mass. 808, 809 (1999). However, "absent a specific finding that retroactivity would be contrary to the child's best interests, unjust, or inappropriate, we conclude that these are factors that the judge should take into consideration when making a decision." Id . at 812. "If the father has been paying less than would otherwise have been required under the [Child Support] Guidelines, this ‘necessarily implies that the child has been receiving insufficient support during the pendency of the complaint.’ " Whelan v. Whelan , 74 Mass. App. Ct. 616, 627 (2009), quoting from Boulter-Hedley , supra at 812.
Here, the judge increased the child support award amount to $805 per week, which is the Child Support Guidelines amount for three children based on the father's income of $175,000. The judge awarded the increased child support retroactive to August 1, 2014, rather than to January 14, 2013, because "both parties were responsible for the extended litigation." The judge concluded that making the order retroactive to the date of trial was "the most equitable thing to do" given that both parties contributed to the protracted litigation. Implicit in this finding is the conclusion that the judge found it unjust or inappropriate to retroactively modify the support award to a date earlier than the trial. This conclusion is supported by the judge's findings that the father's complicated finances necessitated extensive discovery and that the mother "took an unreasonable position as to" the father's income, which necessitated a trial. The judge also identified another equitable factor which appears to offset any concern regarding underpaid child support—namely that, from 2010 to 2014, the mother was receiving child support for three children despite that one of the children was living primarily with his grandparents. While the order could have been more clear, on this record, we discern no abuse of the judge's considerable discretion.
Moreover, while not specifically identified by the judge as a ground for denying retroactive modification, the mother received income totaling more than $98,000 in 2010 (worker's compensation and sexual harassment settlement proceeds) that she was able to enjoy without any upward adjustment of her own obligation to contribute to the children's support.
b. The father's financial statements . As the judge noted, the father's income was difficult to ascertain; this does not mean that the father misrepresented his income. The judge found that the father's "income tax returns, Schedule E income, and corporate tax returns" were inadequate to prove his "actual income." The judge's findings that the father's lifestyle has not changed since the divorce and he continues to have substantial debts support the conclusion that the father was not concealing or diverting unreported income. The judge carefully sifted through the considerable and contested discovery with the help of a special master of discovery and determined the father's reasonable and fair income. We discern no abuse of discretion.
2. Attorney's fees . The mother also argues that the judge should have awarded attorney's fees. A probate judge has "considerable discretion" in deciding whether to award attorney's fees and in determining the amount of the award. Brooks v. Brooks , 65 Mass. App. Ct. 129, 132 (2005). A decision to award or decline an award of attorney's fees will not be disturbed "except upon a showing of an abuse of that discretion." Ibid .
Here, the judge was well within his discretion in finding that both parties contributed to the protracted litigation: the father by producing financial statements that did not clarify his actual income and the mother by taking an unreasonable position as to the amount of the father's increased income.
In her brief, the mother also argues that the judge's findings of fact regarding the father's income were clearly erroneous. However, as the mother conceded at oral argument, this issue was not included in her notice of appeal. She appeals only from "so much of the Judgment dated Nov. 25, 2014 as denies retroactive application of the Judgment to the date of service of the summons upon Defendant and from so much of the Judgment that denies an award of attorney fees to Plaintiff." "Consequently, ‘the validity of th[ese] ruling[s] is not properly before this court and will not be considered on appeal.’ " Robinson v. Boston , 71 Mass. App. Ct. 765, 771 (2008), quoting from Siles v. Travenol Labs., Inc ., 13 Mass. App. Ct. 354, 354 n.1 (1982).
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Conclusion . For the foregoing reasons, we discern no abuse of discretion and affirm the judgment of the Probate and Family Court.
Judgment dated November 25, 2014, affirmed .